By the combined effect of Sections 86, 87, 88, 89, 90, 102 and 103 of the Evidence Act, 2011, documents (Public or Private) may be produced in Court by tendering either the original of the document itself or the copy thereof known as secondary evidence: but a party relying on secondary evidence of a public document must produce the certified true copy and no other copy thereof is admissible.
— C.B. Ogunbiyi, JSC. Kassim v. State (2017) – SC.361/2015
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In Burgess v. Cox (1951) Ch. 383 Harman, J., (as he then was), found that he could read two documents together to remedy the deficiency of the defendant’s signature lacking in the first document relied on as being a memorandum when it was obvious that if the two documents were placed side by side, they referred to the same transaction.
The law is elementary that a trial Judge has the right to expunge from the record a document which he wrongly or wrongfully admitted. He can do so suo motu at the point of writing judgment. He needs no prompting from any of the parties, although a party is free to call his attention to the document at the stage of address. Where a trial Judge is wrong in expunging a document, the appellate process will correct it and so an argument that the Judge ought to have expunged the document suo motu at the stage of writing judgment, will not avail the party wronged. After all, it is better for a Judge to expunge suo motu a document which is clearly inadmissible under the Evidence Act than allow it to be on the record to give headache to the appellate court. As the appellate court has the competence to expunge it from the record, why not the trial Judge?
– Niki Tobi, JSC. Brossette v. Ilemobola (2007)
Abubakar v. INEC [2020] 12 NWLR (Pt. 1737) 37 @ p. 110: “Before I conclude on this issue, let me state that whenever documents are tendered from the Bar in election matters, the purport is to speed up the trial in view of time limitation in election matters. Such tendering is not the end itself but a means to an end. The makers of such tendered document must be called to speak to those documents and be crossexamined on the authenticity of the documents. The law is trite that a party who did not make a document is not competent to give evidence on it. It is also the tested position of the law that where the maker of the document is not called to testify, the document would not be accorded probative value by the Court. That in deed is the fate of exhibits P80 and P24… Finally, on this issue, it was contended by the appellants that the variation in the names of 2nd respondent on Exhibits R19 and R21 makes his relationship with the two documents doubtful. Is “Mohammed” and “Muhammadu” the same name and belong to the 2nd respondent? The Court below made an elaborate discussion on the issue and concluded that RW5 gave explanation on the names and stated that they are the same…. For me, as the appellants failed to prove that any of the documents belong to another person and as nobody has come out to claim any of the two exhibits, I do agree with the explanation given by the RW5 and the conclusions of the Court below that both names “Mohammed” and “Muhammadu” as contained in exhibits R19 and R21 belong to the 2nd respondent. On this note, I resolve issues one and two against the appellants.”
Generally, where parties to an agreement have set out the terms thereof in a written document, extrinsic evidence is not admissible to add to, vary from, or contradict the terms of the written instrument.
– Augie JSC. Bank v. TEE (2003)
Surprisingly the documents were dumped on the Court without any witness linking them up documents with the specific complaints of non compliance. It is settled law that despite the tendering of exhibits in proof of a Petition/case, the onus of proving the case pleaded and for which the documents were tendered in evidence, lies on the Petitioner. In the instant Petition, a lot of documents were tendered from the Bar. When a party decides to rely on documents to prove his case, there must be a link between the documents and the specific areas of the Petition. The party must relate each document to the specific areas of his case for which the documents were tendered. Failure to link the documents is fatal and catastrophic as it is in this case. The Supreme Court in the recent case of TUMBIDO V. INEC & ORS. (2023) LPELR-60004 (SC) held Per Jauro, JSC (at P.43, Paras C-F) as follows: “The practice of dumping documents on the Court without speaking to them has been deprecated by this Court on numerous occasions. No Court is entitled to conduct inquisitorial investigations into the contents of a document or purport thereof in its chambers. The Appellant ought to have called a witness to speak to the photographs and video recording before the Court. See MAKINDE V. ADEKOLA (2022) 9 NWLR (PT. 1834) 13; MAKU V. AL-MAKURA (2016) 5 NWLR (PT. 1505) 201; A.C.N. V. NYAKO (2015) 18 NWLR (PT. 1491) 352.”
— H.S. Tsammani, JCA. Atiku v PDP (CA/PEPC/05/2023, 6th of September, 2023)
Now, here is a man dragging another person to Court over what at best are mere discrepancies in names when he himself is a victim of some discrepancies in his name on Exhibit P2 without any legal consequences whatsoever. Was he also guilty of forgery by the differences in the spelling of his surname in Exhibits P1 and P2 as admitted by him and confirmed by the Court below? Perhaps not. In my finding, these are things which are bound to occur from time to time in human affairs and so long as no criminal intention is imputed and attributed or attributable to them they remain mere trifles tolerated by the society as mere discrepancies. It amounts to no crime of forgery and or false statement at all merely on account of such mere discrepancies. These are mere discrepancies that should not ipso facto without more invoke and ignite grave allegations capable of disqualifying a candidate in law from aspiring to ‘serve his people’. Curiously though as an aside now and no more considering issue three having concluded my consideration of issue three, as I was reading the appellate briefs of counsel, I came across the name of the learned counsel for the 1st Respondent written and signed as ‘J. I. Odibeli Esq,’ then I saw his NBA Seal in the name of ‘Ibezimako Joseph Odibeli, which translates to ‘I. J. Odibelei’ and not ‘J.I. Odibeli.’
– B.A. Georgewill, JCA. Ganiyu v. Oshoakpemhe & Ors. (2021) – CA/B/12A/2021
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